Archive for the ‘Carbon Emissions’ category

In a previous post, John D. Vandenberg, a patent litigator in Portland, Oregon, laid out his vision of a carbon royalty: using patents directly for the publicgood, by imposing a royalty to reduce carbon emissions.

A previous post discussed a host of class action lawsuits against Kia and/or Hyundai accusing the Korean automakers of making false or misleading fuel efficiency claims in their advertising and marketing materials.

Those suits allege that the automakers built advertising campaigns around representations that a number of their vehicles achieved gas mileage in the 40 mile per gallon range when the companies knew or should have known the actual mileage was significantly lower. One major problem, it seemed, was flawed fuel economy testing by the car makers.

A recent lawsuit brought by the Environment and Natural Resources Division of the U.S. Department of Justice (DOJ) and the California Air Resources Board (CARB) provides more revelations about the automakers’ faulty testing (and led to a prompt settlement by Hyundai and Kia including a substantial monetary penalty).

Filed November 3, 2014 in federal court in Washington, DC, the complaintalleges that Hyundai and Kia sold over a million vehicles that did not meet the requirements of the Clean Air Act because the automakers used improper testing procedures and analysis and submitted faulty fuel economy data to the U.S. Environmental Protection Agency (EPA).

The subject vehicles include the 2012 and 2013 Hyundai Accent, Elantra, Veloster and Santa Fe and 2012 and 2013 Kia Rio and Soul.

Under the Clean Air Act, any new motor vehicle sold in the United States must be covered by a Certificate of Conformity issued by the EPA. To obtain a Certificate of Conformity, a manufacturer must submit an application for motor vehicles it intends to sell in the United States.

One of the metrics a manufacturer must test and include in the application is a vehicle’s road load force, a measure of the internal and external forces that cause a vehicle to lose speed, such as driveline friction and wind resistance. The road load force can be calculated by performing a “coastdown” test on the vehicle.

A vehicle’s fuel economy depends, in part, on its road load force. The complaint explains the relationship between road load force and greenhouse gas emissions as follows:

A vehicle with a low road load force has relatively higher fuel economy and emits lower amounts of greenhouse gases because the vehicle efficiently maintains its momentum. Conversely, a vehicle with a higher road load force has lower fuel economy and emits more greenhouse gases because it needs to burn more fuel to counteract that road load force and maintain speed.

According to the complaint, Hyundai and Kia, which worked together on testing of the subject vehicles for the Certificate of Conformity applications, used improper testing procedures and analysis, including cherry-picking results, leading to inaccurately low reported road load forces:

Defendants improperly selected results from test runs that were aided by a tailwind rather than correctly using the results of test runs in both directions, Defendants selected favorable results from test runs rather than average the results from the larger set of tests, Defendants restricted their testing times to periods when the temperature allowed vehicles to coast farther and faster, and Defendants specially prepared vehicle tires for optimized test results.

As a result, the EPA’s investigation and audit testing determined that the actual road load forces for the tested vehicles were about 14-54% higher than the automakers provided in their applications for Certificates of Conformity.

Hyundai and Kia quickly settled with the DOJ and CARB. Under the settlement, the automakers did not have to admit the truth of the allegations but will have to pay about $100 million, about $93.6 million to the DOJ and about $6.4 million to the CARB. This is the largest penalty ever imposed under the Clean Air Act.

The car companies will also forfeit 4.75 million greenhouse emission credits – earned for building vehicle emissions under the legal limit – which they had previously claimed and are estimated to be worth over $200 million.

Sometimes it’s better – for the environment and for the bottom line – to conform.

Summarizing where we left off, most of the middle-income countries (AKA “developing” countries) together with the least developed countries (collectively, “G77 + China”) have taken the position that IP protections act as a barrier to development and transfer of green technologies in and to their domestic markets.

A 2008 report by the International Centre for Trade and Sustainable Development (ICTSD) equivocally concluded that “IP is potentially both an incentive and an obstacle to the transfer of technology.” The report also noted that “no comprehensive study has been conducted on the impact of IP rights” in green technologies.

Half a decade later, the international community plugs on, and little has changed.

The report of Working Group II skates over familiar ground, stating that in many cases “patents and other intellectual property protection constrain technology transfer” but noting the opposing view that “strong IP protection in receiving countries is facilitating technology transfer from advanced countries…” The report does say the evidence suggests that middle-income countries are benefiting from exports, foreign direct investment, and technology licensing associated with IP protection.

Working Group III’s report is similar in substance and tone, observing that IP protection can provide incentives for innovation but “also works to slow the diffusion of new technologies, because it raises their cost and potentially limits their availability.” Elaborating on the favorable evidence on tech transfer to middle-income countries, the report says IP protection “may be necessary to limit the risk for foreign firms that transfer of their technology will lead to imitation and resulting profit erosion.”

But like the ICTSD report from six years ago, the 2014 report of Working Group III still finds insufficient data to conclusively resolve this debate:

In summary, there is inadequate evidence in the literature regarding the impact of IP policy on transfer of GHG-mitigating technologies to draw robust conclusions.

Where is the comprehensive research we need on the true impact of IP rights on green technology development and diffusion?

I’d do it if someone would fund it…

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Patent law has a dirty history. A legal mechanism refined in the industrial revolution, patent law has sought to encourage manufacturing and industry – the ‘Progress of Science and the Useful Arts’. Patent law has provided incentives for research and development for a wide range of polluting technologies, such as oil, coal, gas.

The world’s largest oilfield service providers have built upon a large portfolio of patents to protect their research and development. Baker Hughes obtained 138 patents in 2012 and 368 patents in 2013. Schlumberger’s patents rose to 588 in 2013 from 235 in 2012. Halliburton’s patents rose to 301 in 2013.

Halliburton was awarded more than $35 million in damages after winning a federal trial in Dallas in February 2012 against Weatherford International Ltd. over a patented tool used in well bores.

The major fossil fuel companies – Chevron, ExxonMobil, Shell, BP and ConocoPhilips – have also built large portfolios of intellectual property, relying upon patent law, trade mark law, and trade secrets.

There have also been efforts to patent new techniques and strategies in respect of ‘fracking’ – hydraulic fracturing.Daniel Cahoy and his colleagues arguethat Fracking Patents have emerged as a means of Information Containment.

Bill McKibbin of 350.org has emphasized that oil, coal, and gas companies are radicals because ‘they’re willing to alter the chemical composition of the atmosphere to make money.’ He maintained that such companies should lose their social license and respectability: ‘If it is wrong to wreck the climate, then it is wrong to profit from that wreckage’.

Accordingly, 350.org has organised a fossil fuel divestment movement. The organisation has encouraged university and educational institutions to divest themselves of fossil fuel stocks. Cities such as Portland, Seattle, and San Francisco have pushed ahead with fossil fuel divestment policies in relation to city pension funds. Superannuation funds and sovereign funds have been encouraged to engage socially responsible investment.

It is only a matter of time before environmental and climate activists challenge the validity of fossil fuel investments in respect of intellectual property.

There is a growing debate whether there should be limits in respect of patentability in respect of polluting technologies. Article 27 (2) of the TRIPS Agreement 1994 recognises that ‘members may exclude from patentability inventions… [in order] to avoid serious prejudice to the environment’.

Professor Estelle Derclaye from the University of Nottingham has argued that ‘patent offices could either not grant patents for any invention which emits CO2 or make a cost-benefit analysis in terms of the value of the invention for society and the levels of CO2 emitted.’ Examining European law, she suggests: ‘Applying these principles to global warming, it could mean that the cost-benefit analysis test could be used only if there is evidence that a specific invention causes actual damage or disadvantage to the environment.’

In the past, there have been civil society groups and activist movements which have sought to challenge the patentability of controversial subject matter. Thus, there has been a concerted push by the free software movement to prohibit patents in respect of software. There have been demands to abolish business method patents particularly in light of the Global Financial Crisis. Organic farmers, consumer rights’ activists, and environmental groups have protested over the granting of patents in respect of genetically modified crops.

In the field of health, there has been concern in respect of the patent eligibility of methods of human treatment, genetic testing, and stem cells. Greenpeace has been particularly active in challenging patents in the field of biotechnology. There has been much concern about the problem of biopiracy – particularly amongst developing countries and least developed countries. Futurists like the ETC Group have worried about the grant of patents in respect of emerging technologies – such as nanotechnology, synthetic biology, and geo-engineering.

It is inevitable that environmental groups and climate activists will push for a ban on patents in respect of fossil fuels – such as oil, gas, and coal. It is also likely that civil society groups will engage in patent-busting, and challenge the validity of individual patents held by fossil fuel companies.

There will also be a further push to reform the patent regime to encourage the development of clean technologies and renewable energy. Francis Gurry, the Director-General of the World Intellectual Property Organization, has commented:

Human activity, including decades of technological development, has damaged our planet. Wide-spread pollution and spiraling consumption of the world’s mineral and biological reserves have put unprecedented stress on the environment. Climate change is one of the greatest threats ever faced by society: glaciers are disappearing; desertification is increasing; in Africa alone, between 75 and 250 million people will face increased water shortages by 2020.

Gurry has maintained: ‘As human activity caused the problem, so too can human activity find the solutions’. He has insisted: ‘Green innovation – the development and diffusion of technological means to tackle climate change – is key to halting the depletion of the earth’s resources.’

There is a need for patent law to become fossil fuel free, and support research and development in respect of clean energy.

*Dr. Matthew Rimmer is an Australian Research Council Future Fellow, working on Intellectual Property and Climate Change. He is an associate professor at the ANU College of Law, an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA), and a director of the Australian Digital Alliance.

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In a previous post, I wrote about the New Energy Symposium held last month in New York City. The first day of the event featured a startup quick pitch competition, and the three winners of the competition were recently announced.

They are, in alphabetical order, Dynamo Micropower , ENrG, and Paper Battery Company (as discussed below, the latter two share an “ultra-thin” theme). I listened to all of the winning companies’ presentations, and each mentioned, to a different extent, its IP situation.

Dynamo Micropower (Dynamo) is developing small turbines for various applications, including combined heat and power and pumping oil at wells. The company is applying recent advances in turbine technology to commercialize small, ultra portable generators.

Dynamo was founded by three recent college grads from Duke University–Jason Ethier, Ivan Wang, & Hardy Shen. The CEO, Mr. Ethier, who gave the presentation on behalf of Dynamo, said the company filed a U.S. patent application on its technology earlier this year, so the application is not published yet.

ENrG Inc. (ENrG) is a Buffalo, New York-area company that develops ultra-thin ceramic membranes and coating technologies for various applications such as fuel cells, gas separation, and possibly flexible solar photovoltaics.

ENrG’s President, John Olenick, presented at the symposium. He said that, through IP licensed in from Corning, the company has staked out the range of 45 microns or lower for ceramic membrane technology, and a pending license includes more supporting patents.

The ‘412 Patent is entitled “In-situ seal integrity monitoring” and directed to a high temperature seal having in-situ integrity monitoring capability. One important application for the technology, described in the ‘412 Patent, is in solid oxide fuel cells.

A fuel cell (2) has a first ceramic plate (4) with a fuel flow port (6) leading to a fuel plenum (8) and a second ceramic plate (10) having an oxygen flow port (12) leading to an oxygen plenum (14).

Cell stack (16) is disposed between the plates (4, 10) and includes a first current collector (18A), an anode (18), a solid ceramic electrolyte (20), a cathode (22), and a second current collector (22A).

A pair of seals (24, 26) are respectively disposed between the plates (4, 10) and the cell stack (16) to bond the components of the fuel cell together and prevent outgassing from the fuel and oxygen plenums (8, 14). The seals (24, 26) can can be constructed with an embedded transmission line (30A) that includes a central signal conductor (32A) and a pair of ground reference conductors (34A).

The transmission line (30A) can be connected in a closed loop circuit for signal injection and monitoring of the integrity of the seals (24, 26) during device fabrication and subsequent field operations.

The ‘014 Application is entitled “Operation of an electrolysis cell” and directed to systems and methods for operating electrolysis cells and maintaining desired thermal neutral voltage level under varying electrical power supply conditions. The invention accomplishes this by adjusting the feedstock moisture content in response to fluctuations in available electric power.

The third winner, Papery Battery Company (PBC), is also in the ultra-thin business: PBC makes patterned batteries out of high pulse superconductor sheets about 300 microns thick. According to its web site, PBC’s central innovation is “a novel architecture and production process for supercapacitor technology, extensible to battery technology as well.”

The company says its PowerPatch product is small and scalable:

The first product line, called PowerPatch™, is an ultrathin, integrated supercapacitor that can scale voltage, energy and power in a single unit, addressing the growing needs for high power in smaller size and lower weight devices.

PBC’s CEO, Shreefal Mehta, presented at the symposium and said the company has filed some patent applications and is employing a licensing business model. During, his presentation, Mehta alluded to a pending deal with a licensee in the energy storage space.

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Enviance is a Carlsbad, California, corporation that produces and sells Environmental Enterprise Resource Planning (ERP) software and provides other environmental services. The ERP software enables Enviance’s clients to measure, manage, and report things such as greenhouse gas (GHG) emissions and environmental health and safety (EHS) data in order to mitigate their environmental performance.

Enviance owns at least three U.S. trademark and service mark registrations for the ENVIANCE mark (Enviance Marks):

Registration No. 2,615,961 for “computer software for providing information and forms creation in the area of environmental regulation and compliance, brownfield redevelopment, health and safety” in Class 9;

Earlier this month, Enviance sued Enviance Services (“ES”), of Houston, Texas, for trademark infringement relating to the use of the Enviance Marks. ES was created by two companies: Energy Services Acquisitions II (“ESA2”), a company that provides services relating to the Pipeline Safety Act and the Clean Air Act, and Reces, an environmental consultancy.

Enviance’s complaint alleges that ES has been using the term “Enviance” in its promotions, and that the term is substantially similar to Enviance’s registered marks.

According to the complaint, Enviance has been using the Enviance Marks in connection with its products and services since June of 2001. Thus, the company says it has built up a strong reputation and goodwill with consumers, and the Enviance Marks have become a distinctive symbol in the industry.

Enviance alleges that ESA2 and Reces’s use of the mark, in relation to ES, is designed to mislead consumers into believing the origin of goods and services is the already established corporation Enviance.

Therefore, Enviance seeks to prevent further use of its trademarks to prevent other companies from unjustly enriching themselves based on the hard work that Enviance has already done to build its reputation.

As GHG emissions accounting and reduction becomes financially and legally important in places like Australia and California, we can expect to see increased IP litigation involving this type of software product.

*Jared LeBeau is a contributor to Green Patent Blog. Jared is a Summer Associate with the downtown San Diego office of McKenna Long and Aldridge LLP. He will be entering his third and final year at the University of San Diego School of Law in the fall of 2012. He received a dual undergraduate degree in Psychology and Criminal Justice from Marist College in 2009.

Our Green Off-Patent Report provides selected highlights of green patents which completed their 20-year term and expired within the last week or so (assuming the patentee paid all requisite maintenance fees; U.S. patents require payment of fees 3 1/2, 7 1/2, and 11 1/2 years after issuance to stay in force).

Many of the green technologies in use today are off-patent, i.e., the patents covering the technologies have run their 20-year term and expired.

Knowing which technologies are off-patent is important because those technologies are in the public domain and can be exploited by anyone. It’s also interesting because it provides a window into what was cutting edge technology twenty years ago.

U.S. Patent No. 5,354,477 (Water Purification) entitled “Low Molecular Weight Amines and Amine Quaternaries for the Removal of Soluble Organics in Oil Field Produced Water.” The patent describes a method for removing hydrocarbons from water by injecting low molecular weight amines and preferably amine quaternaries with strong acids into an oil and water mixture to remove oil based salts. Filed April 7, 1992; issued October 11, 1994; expired April 7, 2012.

U.S. Patent No. 5,324,433 (Soil/Water Restoration) entitled “In-situ Restoration of Contaminated Soils and Groundwater.” The patent describes a method for removing and stabilizing in-situ soluble heavy metal contaminants from soil and groundwater by injecting an aqueous solution of naturally occurring ions. The solution solubilizes the heavy metals into solution where they can be removed. Filed April 16, 1992; issued June 28, 1994; expired April 16, 2012.

U.S. Patent No. 5,261,970 (Photovoltaic Cells) entitled “Optoelectronic and Photovoltaic Devices with Low-Reflective Surfaces.” The patent describes photovoltaic devices with low angle ‘V’ shaped grooves on the target surfaces. The grooves increase the efficiency of the devices by promoting internal reflection of light from the target surface at the interface of the coverglass.” Filed April 8, 1992; issued November 16, 1993; expired April 8, 2012.

U.S. Patent No. 5,260,588 (LEDs) entitled “Light Emitting Diode.” The patent describes a light emitting diode formed as reverse mesas with mirrored sloping surfaces which reflect light in the direction of the light emitting diode surface, improving the efficiency of each diode. Filed April 14, 1992; issued November 9, 1993; expired April 14, 2012.

U.S. Patent No. 5,317,979 (Greenhouse Gas Emissions Reduction) entitled “Method and Apparatus for the Complete, Dry Desulphurization of Combustion Waste Gases Comprising SO2 and Dust.” The patent describes a method for removing SO2 from the combustion waste gases of coal dust. The process includes heating the gas quickly to a temperature below the sintering temperature of the fly ash, then cooling the gas to a temperature where the distance between the temperature and the dew point is low and is below 25 degrees C. This binds the SO2 gas to the ash, cleaning it from the combustion waste gas. Filed April 16, 1992; issueed June 7, 1994; expired April 16, 2012.

David Gibbs is a contributor to Green Patent Blog. David is currently in his third and final year at Thomas Jefferson School of Law in San Diego. He received his undergraduate degree in Geology from the University of California, Berkeley.

The ruling by the Danish Maritime Court is the culmination of a dispute that began in 2008 after Empac, a European metal packaging industry group, sued RPC Superfos, accusing the Danish plastic packaging company of making false or misleading environmental claims in marketing literature.

In particular, Empac alleged that certain statements about the environmental benefits of plastic versus the negative environmental impact of metal packaging were inaccurate and unsubstantiated.

According to the article, the Danish court agreed with Empac and found the statements to be inaccurate and unsupported, including invalid statements relating to carbon dioxide emissions. Althought the court did not order Superfos to pay any damages, the company is prohibited from making certain claims and using certain images detrimental to metal packaging producers.

The court decision stressed the importance of the accuracy of environmental claims in advertising:

To prevent unfair competition strict requirements for accuracy of such environmental claims must apply. These have to be clear, true, specific and not misleading and have to be substantiated by an impartial expert.

The article quotes Jim Hansen, secretary general for the Danish Aluminum Association, which represented Empac in the case, as calling it important to “have on record that Superfos acted in contravention of the advertising guidelines.”

Hansen also mentioned that advertisers should be careful about life cycle analysis claims, especially those relating to an industry outside the realm of the advertising firm:

Life cycle analyses usually center on someone’s own material. But if you do make statements about another industry’s material you should be careful.

Which brings us to reverse greenwashing. In a previous post I discussed this increasingly common phenomenon.

Greenwashing is advertising that misleads consumers about the environmental benefits of goods or services. For example, making unsubstantiated claims about better energy efficiency or lower environmental impact.

Reverse greenwashing, on the other hand, consists of false or deceptive claims about the negative environmental impact of competitors’ products, such as the detrimental effects of metal containers on the environment.

FuelCell Energy is a Danbury, Connecticut, manufacturer of ultra-clean fuel cell power plants. Their Direct Fuel Cell (DFC) systems are currently producing electricity at more than 50 locations worldwide and have generated over 850 million KWh of power.

FuelCell was recently named by the Department of Energy as the recipient of a $2,994,108 award to utilize its DFC power plant to capture carbon emitted from a conventional coal fueled power plant.

Heat produced from the reactions can be used to drive an unfired turbine generator. Figure 1 of the ‘290 Patent depicts a heat engine (3), shown as a turbine generator, having a gas compressor (3A), and a gas decompression section (3B). By using the exhaust heat from the carbonate fuel cell reaction to drive a turbine, the plant is able to increase its overall energy output and efficiency.

Figure 1:

Fuel cell technology is efficient because it produces energy without going through the combustion process. Rather, fuel cells use an electro-chemical process to produce electricity and heat.

As a result, unlike conventional combustion based power plants, there are no harmful NOx’s or SOx’s produced. Learn more about fuel cells here and here.

The electro-chemical process used in the DFC fuel cell, based on the ‘290 Patent, involves three chemical reactions depicted below:

Reaction One (Internal Reforming): CH4 + 2H2O –> 4H2 + CO2

Reaction Two (Anode Reaction): 4H2 + 4CO3 –> 4H2O + 4CO2 + 8e-

Reaction Three (Cathode Reaction): 2O2 + 4CO2 + 8e- –> 4CO3

The first reaction takes a fuel source such as methane and combines it with steam to produce hydrogen gas and CO2. The hydrogen gas produced in the first reaction is combined with a carbonate in the anode reaction to produce water, CO2 and electrons (electricity).

The third reaction (cathode reaction) uses oxygen, CO2 and electrons to produce a carbonate and heat. The carbonate is then used in the anode reaction. The heat produced in this reaction is used to drive a turbine generator.

FuelCell’s DFC technology may be able to utilize flue gases from a fossil fuel power plant, such as a coal power plant, for use in the above process. Flue gases can be concentrated so that the CO2 can be separated from the remaining air and NOx gases.

The air and CO2 can be used in the cathode reaction. The CO2 from both the flue gases and the fuel cell reactions can be collected, stored and sold in either gas or liquid form.

FuelCell Energy’s carbonate fuel cell technology separates and concentrates CO2 as a side reaction during the power generation process. DFC carbon capture research conducted by FuelCell Energy has demonstrated the DFC is a viable technology for the efficient separation of CO2 from a variety of industrial facility flue gases such as cement plants and refineries. In addition to the carbon capture, the research also verified that DFC technology is capable of destroying some of the nitrogen oxide (NOx) emissions in flue gas streams, thus, reducing the cost of NOx removal equipment. This award from the DOE will advance DFC carbon capture technology further by funding research to assess the capability of DFC technology to seperate the CO2 within the flue gas emitted by existing coal fired power plants in a cost-effective manner.

A Department of Energy Press Release states the Department’s goal for FuelCell’s award is to achieve at least 90 percent CO2 capture from flue gas of an existing plant with no more than a 35 percent increase in the cost of electricity produced.

FuelCell states, “Technology currently in use to capture CO2 from the emissions of coal fired power plants are energy-intensive with high operating costs. DFC power plants potentially represent an efficient and cost-effective approach to separating CO2 while generating ultra-clean power rather than consuming power, as required by current CO2 capture technologies.”

If FuelCell is able to caputure CO2 from a coal plant while producing excess electricity, it will represent a dramatic departure from current carbon capture systems, which require large amounts of energy and are net energy consumers. FuelCell’s DFC may make the illusive goal of efficient clean coal a reality.

David Gibbs is a contributor to Green Patent Blog. David is currently in his third and final year at Thomas Jefferson School of Law in San Diego. He received his undergraduate degree in Geology from the University of California, Berkeley.

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EcoDisc Technology AG (EcoDisc AG) is a Swiss company that has developed the EcoDisc, a thinner, lighter eco-friendly DVD. According to EcoDisc AG, its technology provides a 52% reduction in carbon dioxide emssions compared to a standard DVD.

Specifically, the EcoDisc uses about 50% less polycarbonate (an oil derivative) and needs about 50% less energy for production. It is 0.6 mm, about one-half the thickness of a standard DVD, which typically comprises two 0.6 mm discs epoxied together. Also, the EcoDisc can be recycled due to the absence of toxic bonder.

Last month, EcoDisc AG sued the DVD Format/Logo Licensing Corporation (DVD FLLC) and the DVD Forum in federal court in Los Angeles, alleging that the two DVD standards organizations have acted to suppress the use of EcoDisc technology, violating antitrust and false advertising laws.

Manufacturers, or “replicators,” that want to produce DVD products using DVD FLLC specifications and the familiar DVD logo owned by DVD FLLC (pictured below) have to obtain a license to do so.

According to the complaint (ecodisc_complaint.pdf), DVD FLLC recently sent a written communication to all of its licensed replicators stating that any replicator that manufactures 0.6mm discs, including EcoDiscs, would be in breach of the DVD FLLC license agreement and could have its license terminated.

The complaint also alleges that DVD FLLC recently filed a sham lawsuit against one of EcoDisc AG’s customers.

EcoDisc AG is asking the court for injunctive relief and and an order that defendants post and disseminate corrective advertising.

Apparently, EcoDisc AG has had some recent success in combatting DVD FLLC. According to the complaint, in April a German court issued a preliminary injunction against DVD FLLC, prohibiting the organization from stating to EU replicators that the manufacture of 0.6mm discs is in breach of the license agreement and might lead to termination of the license.

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